On Report and Recommendation of the Board of Professional Responsibility.
Rogers, Chief Judge, Newman, Associate Judge, and Kern, Senior Judge.
The opinion of the court was delivered by: Per Curiam
On June 17, 1988, the United States Court of Appeals for the Federal Circuit suspended Respondent, Jack B. Solerwitz, for one year from practice before that tribunal. In re Solerwitz, 848 F.2d 1573 (Fed. Cir. 1988), cert. denied, 488 U.S. 1004, 109 S. Ct. 784, 102 L. Ed. 2d 775 (1989). This court directed the Board on Professional Responsibility (the Board) to recommend whether the identical discipline should be imposed in this court. The Board recommends that respondent be disciplined because his misconduct, as found by the Federal Circuit Court of Appeals, constitutes misconduct under this court's Disciplinary Rules. The respondent has not challenged, and Bar Counsel supports, the Board's Report and Recommendation.
Specifically, the Board concluded that the respondent's misconduct, consisting of filing a series of frivolous appeals, repeatedly violating court orders, and consistently failing to follow appropriate procedural rules and otherwise interfering with the Federal Circuit's work, constituted violations of DR 1-102 (A)(5) (engaging in the conduct prejudicial to the administration of Justice), and DR 7-102 (A)(2) (knowingly advancing unwarranted claims). We approve and adopt the Report and Recommendation of the Board which is attached to this opinion.
Accordingly, it is hereby ordered that respondent, Jack B. Solerwitz, be publicly censured.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
IN THE MATTER OF: JACK B. SOLERWITZ, RESPONDENT.
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This proceeding arises under Section 18(2) of Rule XI, which deals with the imposition of reciprocal discipline on members of our Bar who have been disciplined for attorney misconduct in other jurisdictions. On June 17, 1988, the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") suspended Respondent for one year from practice before that tribunal. In re Solerwitz, 848 F.2d 1573 (Fed. Cir. 1988), cert. denied, 488 U.S. 1004, 109 S. Ct. 784, 102 L. Ed. 2d 775 (1989). When this was brought to the attention of the District of Columbia Court of Appeals, the Court, by order dated June 13, 1989, directed the Board to recommend whether the identical discipline should be imposed here or whether other procedures should be followed. *fn1
Respondent urges that we not recommend imposition of reciprocal discipline because of the existence of one or more of the factors set forth in Section 18(5)(a) through (e) of Rule XI. If any of those factors is found, reciprocal discipline is not to be imposed. Bar Counsel takes the position that reciprocal discipline should be imposed because none of the cited factors exists and because the sanction imposed by the Federal Circuit is "roughly equivalent" to the sanction that would be imposed here for similar misconduct.
For the reasons discussed below, the Board recommends that Respondent be disciplined by the District of Columbia Court of Appeals, but that a less stringent sanction than suspension for one year be imposed. The Board does not deem it necessary to. direct de novo evidentiary hearing in this matter.
These proceedings had their origin in the 1981 strike by Federal air traffic controllers. Because the strike was held to be illegal, the Government dismissed approximately 11,000 controllers who had joined in the work stoppage. Respondent's law firm was retained by many of the discharged controllers to try to gain for them reinstatement or other redress.
As Federal employees, the discharged controllers had certain procedural remedies available before the Merit Systems Protection Board and, from there, before the Federal Circuit. More than 10,000 of the discharged controllers appealed to the MSPB and, thereafter, more than 4,500 individual petitions for review were. filed with the Federal Circuit. Before the Board, Respondent's firm represented more than 800 controllers, many of whom went on to file review petitions with the Federal Circuit.
Because the large number of controller appeals threatened to overwhelm the resources of the then newly-established Federal Circuit, the Court worked out procedures to streamline these proceedings. Among the devices used was the designation of certain appeals as "lead cases." These were "typical" cases that were deemed to present legal issues common to many other pending appeals. These "lead cases" were scheduled for expedited briefing and oral argument, while all other pending cases were stayed. One of Respondent's cases was a "lead case."
After the "lead cases" were decided adversely to the controllers (and after the United States Supreme Court denied writs of certiorari), counsel for the other controllers, whose cases had been stayed, were notified by the Court that, if they wished to continue to prosecute their appeals, specific affirmative steps had to be taken. One of the requirements to proceed with an appeal was the filing of a statement identifying specific issues in the appeal that had not been adversely decided by the "lead cases." ...